Man claims Xbox 360 scratched games in suit against Microsoft

Kelly Holleran Dec. 8, 2008, 10:17am

A Madison County man has filed suit against Microsoft Corporation, alleging his Xbox 360 console has destroyed three games by scratching them.

Jason Johnson purchased "Rock Band," "Grand Theft Auto IV" and "Rock Band 2" to play on his Xbox 360, all of which worked for a time but began to display "Disc Unreadable" errors after several hours of use, according to the complaint filed Dec. 4 in Madison County Circuit Court.

Before the "Disc Unreadable" errors would appear, Johnson heard "unnatural, grinding noises while the game disc was spinning," according to the suit.

All of the games became essentially unplayable, Johnson claims.

After "Rock Band 2" began to have the same problems as "Rock Band" and "Grand Theft Auto IV," Johnson removed the disc from his Xbox 360 to inspect it and found three circular scratches running parallel to the data tracks on the readable side of the disc, according to the complaint.

"This was the first time the disc had been removed from the Xbox 360 since the disc was first placed in the console," the suit states. "At no time was Plaintiff's Xbox 360 console moved when the Rock Band 2 disc was within."

Johnson claims he discovered similar marks on "Rock Band" and "Grand Theft Auto IV."

"Plaintiff determined that his Xbox 360 must be defective and damaging his games due to the pattern of each of his previous three games becoming unplayable shortly after their purchase and without ever having been removed from the Xbox 360 console," the suit states.

Johnson called Microsoft on Oct. 29 and informed an agent that he believed his Xbox 360 was scratching his game discs, according to the complaint.

The agent told Johnson to visit Microsoft's Web site and consult the Disc Replacement Program about obtaining replacement discs, Johnson claims.

However, the Disc Replacement Program only replaces games that Microsoft published for a total of 12 games, according to the complaint.

In addition, consumers must return the damaged disc plus $20 to receive a replacement.

"Plaintiff is informed and believes that the cost to press and ship a replacement disc is less than twenty dollars," the suit states. "Thus, Microsoft stands to profit on each disc it replaces under the Disc Replacement Program."

Because Johnson's games were not published by Microsoft, they did not qualify to be reimbursed, he claims.

Even if he were to obtain new games, Johnson told the Microsoft agent he feared the console would scratch other discs because he feared the problem was in the Xbox 360 itself, according to the complaint.

After the agent talked Johnson through multiple troubleshooting tasks and nothing worked, he informed Johnson his Xbox 360 optical drive was likely defective and scratching his games, the suit states.

The agent then told Johnson he could send his console to Microsoft to be repaired, but Microsoft would charge him $99 for the repair, he claims.

"Plaintiff informed the Microsoft agent that he was not going to $99.00 to have the console repaired," the suit states. "The Microsoft agent instructed Plaintiff that if he changed his mind he could call back."

The damaged Xbox 360 was not the same one Johnson originally purchased, but was a replacement for his first console.

Johnson originally bought his Xbox 360 in August 2006, but it suffered a total operational failure during its normal use in September 2007, according to the complaint.

It "displayed three red lights on the front of the console, commonly known as the 'Red Ring of Death,'" the suit states.

Johnson returned his console in September 2007 and received a console he believes to be different than his original one three to four weeks later, he claims.

The second console is the one that began scratching Johnson's discs.

Because of the console, Johnson has suffered a reduced valued of the purchase price of the Xbox 360, plus the costs to replace his damaged game discs and the cost to repair or replace the Xbox 360.

Microsoft violated the Illinois Consumer Fraud and Deceptive Business Practices Act because it knowingly omitted its own data from investigations about the true danger of Xbox 360 damaging consumers' discs, according to the complaint.

The company also consciously failed to notify Johnson of the danger Xbox 360 posed to game discs, consciously failed to communicate to Johnson that Xbox 360s are defective and may be the cause of the scratched discs and knowingly attempted to persuade Johnson to purchase discs from its Disc Replacement Program, the suit states.

Johnson claims Microsoft knowingly and intentionally tried to persuade him to believe the disc was damaged due to him and knowingly failed to include with "Disc Unreadable" error messages that the Xbox 360 may be unable to read the disc because the Xbox has scratched the disc.

At the time the Xbox 360 was sold, it had an implied warranty that it was of merchantable qualities.

However, "the Xbox 360 was not of merchantable quality or safe or fit for its intended use, because it was unfit for the ordinary purposes for which it was used, because the Xbox 360 cannot play any discs during normal use without permanently damaging those discs," the suit states.

The optical disc drives in the Xbox 360s were defectively designed because the disc reading mechanism of the optical disc drive may come into contact with a disc during normal use and because no safety mechanism was included within the optical disc drive to ensure that a disc did not come into contact with the disc reading mechanics of the optical disc drive during normal use, Johnson claims.

Microsoft breached its duty to act as a reasonable manufacturer because it failed to determine whether the optical disc drives in Xbox 360s could damage discs, failed to investigate whether Xbox 360s were damaging discs, failed to take steps to confirm reports from consumers that their Xbox 360s were damaging discs, failed to warn Xbox 360 purchasers that the Xbox 360 may damage discs, failed to recall Xbox 360s known to be defective, designed the optical disc drive so that it had a propensity to damage discs and failed to disclose that scratched discs may be the result of a defective Xbox 360, according to the complaint.

In the five-count suit, Johnson is seeking actual damages, punitive damages of $50,000, plus costs, attorney's fees and any other relief the court deems just.

Emily J. Johnson of Johnson Law Firm in Alton will be representing him.

Madison County Circuit Court case number: 08-L-1141.

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